Florida Republicans Working to Gut Restoration of Felon Voting Rights

Last November the state voted overwhelming to amend its constitution. The lawmakers they elected at the same time are sabotaging it.

Something insidious is happening in the Sunshine State—but it’s not quite what some are making it out to be.

Mark Joseph Stern explains for Slate (“Florida Republicans Are Sabotaging a Constitutional Amendment That Gave Felons the Right to Vote“):

In November, a supermajority of Florida voters approved a constitutional amendment restoring voting rights to former felons who’ve completed their sentences. On Tuesday, Florida Republicans advanced a bill that will strip hundreds of thousands of these individuals of the franchise once again.

That measure, which GOP lawmakers voted out of committee along party lines, is a direct assault on Amendment 4, which altered the state constitution to reinstate felons’ right to vote. It is an astonishing rejection of Floridians’ overwhelming support for the amendment and a flagrant power-grab designed to suppress potential Democratic votes. And because the Florida Legislature, governorship, and Supreme Court are dominated by Republicans, the bill stands an excellent chance of becoming law, reversing the biggest voting rights victory of the 21st century so far.

Shortly after the 2018 election, it became clear that Republican lawmakers would attempt to undermine Amendment 4. By its own terms, the law is self-executing; it requires no implementation by the Legislature. Floridians who have completed a sentence for a felony conviction should now be permitted to vote, so long as they did not commit homicide or a sex offense. Yet GOP Gov. Ron DeSantis (who opposed the amendment) and his allies in the Legislature quickly asserted that it is not self-executing and requires “implementing language.” That’s not true, but it allowed Republicans to curtail the amendment’s impact under the guise of “implementing” it. Since November, the key question was how brazenly GOP lawmakers would seek to subvert the amendment: Would they tinker around the edges, or gut the law entirely?

It turns out to be more complicated than that. The plain text of the amendment says that “any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.” In Florida, at least, “all terms of sentence” is a matter of some controversy.

We learned the answer on Tuesday, when the House of Representatives’ Criminal Justice Subcommittee passed a bill designed to sabotage Amendment 4. The amendment unambiguously declares that “voting rights shall be restored upon completion of all terms of sentence including parole or probation.” But the new bill adds a new hurdle: Felons may not register to vote until they’ve paid all court costs, fines, and fees associated with their sentences.

Rather obviously, this is indeed an attempt to sabotage the amendment. Moreover, it’s unquestionably part of a larger scheme by Republicans across the country to disenfranchise demographics who disproportionately vote for Democrats. But, on the surface, this provision seems reasonable: people who haven’t paid their fines and court costs haven’t completed the terms of their sentence.

Alas, it’s more complicated than that, too.

To understand why this provision is a poison pill, it’s important to understand the system of “cash-register justice” practiced by Florida and many other states. To finance its criminal justice system, Florida imposes both fines and “user fees” on defendants upon conviction. Individuals may be fined up to $500,000 for their crime, then saddled with a mind-boggling array of administrative fees. Defendants must pay hundreds or thousands of dollars to fund court costs, “crime prevention” programs, and local jails. They must pay a fee to apply for a public defender, to receive medical treatment in prison, to reinstate a suspended driver’s license, and to participate in drug abuse treatment. Those who receive probation must pay “surcharges” to fund their supervision or room-and-board at a halfway house, as well as electronic monitoring and urinalysis.

Florida calls some of these fines “restitution,” but they’re a far cry from the standard definition of that concept. Typically, restitution requires defendants to compensate their victims and constitutes part of their criminal sentence. But Florida stretches restitution to encompass fines paid to the state to subsidize courts, county governments, police departments, and investigators. Meanwhile, the Florida Constitution compels county clerks of the court to finance their offices through “user fees.” These assessments are separate from a defendant’s criminal sentence—they’re a budgetary mandate, a tax on defendants to keep the courts running.

Now, this is obviously outrageous and counterproductive. But it’s just a common practice taken to absurd extremes. In most places I’ve lived, even minor traffic offenses come with an array of court costs and other fees—even for those who simply pay their ticket ahead of time, never making an appearance in court. And, for those who can’t pay, additional fees and penalties add up and licenses get suspended. Still, voting rights are different in that they’re a fundamental freedom.

Here’s where it gets interesting:

Here’s the unspoken but well-documented truth about these fines and fees: Almost no one ever pays them in full. Former felons already struggle to find employment upon completion of their prison terms, and few can afford to tithe a large portion of their salary to the state. According to WLRN, Florida courts levied $1 billion in felony fines between 2013 and 2018; each year, only 19 percent of that money was paid back. The Florida Court Clerks and Comptrollers (FCCC), an association that releases annual summaries of assessments, labeled 83 percent of court fines levied between 2014 and 2018 as having “minimal collections expectations.” That indicates that there is little chance that the money will ever be paid.

Even as the state acknowledges that indigent defendants cannot pay these costs, it continues to assess and track eye-popping fines. In Miami-Dade County, there are more than $278 million in outstanding court fines; that number is $195.8 million in Palm Beach County, which charges interest on court debt. Florida law permits private debt collectors to recover this money from defendants—and secure a commission of 25 to 40 percent of the fine. These collection agencies spend large sums of money lobbying the Legislature to maintain the current system and keep former felons permanently indebted.

If Republicans’ subversion of Amendment 4 becomes law—which seems likely given the GOP’s stranglehold on power—how many felons will suddenly lose their voting rights again? Right now, roughly 1.4 million Floridians should be enfranchised under Amendment 4. Once the GOP bill passes, that number will drop precipitously. If the bill only affected individuals with unpaid fines that the state calls “restitution,” then it would disenfranchise roughly 540,000 people. But the measure goes much farther, encompassing any “financial obligation arising from a felony conviction,” including “user fees.” In 2018, the FCCC reported that the collection rate for fines and fees in circuit criminal courts, where most felony cases take place, was a dismal 20.55 percent. If as many as 79.45 percent of felons still owe these debts, the Republican bill could disenfranchise 1,112,300 people.

Clearly, imposing massive fines that people are unlikely to pay is bad public policy. Authorizing their harrassment by debt collectors adds insult to injury. Surely, it’s in the state’s interest for these people to get back to being productive members of society?

Still, the fact remains that these fines are not only on the books but routinely imposed. Is it reasonable to consider their payment part of “completion of all terms of sentence”? Probably.

And this would seem to refute the notion that Amendment 4 was “self-executing.” Somebody has to certify the ”completion of all terms of sentence.” The legislature is simply defining what that entails.

Florida Democrats have condemned the GOP measure as an unconstitutional poll tax, which is descriptively accurate. But there’s little hope that the federal courts will strike it down, since the U.S. Supreme Court has tolerated other measures that impose heavy burdens and costs on voters. The most straightforward challenge would arise under Amendment 4 itself, since lawmakers are violating its plain text by denying voting rights to felons who’ve completed their sentence. But Desantis appointed three justices to the Florida Supreme Court during his first weeks in office, creating a 6-1 conservative majority that is probably unwilling to enforce the new amendment vigorously. Former felons are boxed in by a governor, Legislature, and judiciary that all appear hostile to their constitutional rights.

I agree that this is effectively a poll tax. But the courts have ruled time and again that disenfranchising convicted felons passes Constitutional muster. And several other states have long had provisions similar to the one working its way through Florida’s legislature and the courts have declined to declare the practice in violation of the 24th Amendment.

The dirty secret is that felony disenfranchisement has always been aimed at minority voters. The “Background” section for the Wikipedia entry on Amendment 4:

After the abolition of slavery in the United States, Florida enacted Black Codes, which restricted freedoms for African Americans and led to mass incarceration. The 1868 Florida Constitution enacted felony disenfranchisement, a ban on voting for felons even after completing parole and probation, disproportionately impacting African Americans. Though other Jim Crow laws, such as education requirements, were repealed in successive constitutions, felon disenfranchisement continued.[6]

In 2016, 6.1 million adults in the United States could not vote due to felony disenfranchisement laws.[7] In 2018, Florida was one of four U.S. states that enacted permanent felony disenfranchisement, affecting 1.7 million felons.[6] Felons must wait five to seven years after the completion of their sentence before they can apply to have their voting rights restored by the State Board of Executive Clemency, which is composed of the Governor of Florida and the Florida Cabinet, and meets four times per year at the Florida State Capitol in Tallahassee, Florida.[8] Florida’s disenfranchised felons constituted 10% of the adult population, and 21.5% of the adult African American population.[9]

As Governor of Florida, Charlie Crist reformed the process for the reinstatement of voting rights in 2007, allowing non-violent offenders to have their voting rights automatically restored.[10] Over 155,000 applications for voting right restoration were approved during Crist’s four-year term.[8] Shortly after succeeding Crist as governor, Rick Scott, with the advice of Florida Attorney General Pam Bondi, ended the automatic restoration for felons convicted of non-violent crimes in the state and instituted a mandatory five-year wait period before felons could apply to the State Board of Executive Clemency for restoration of voting rights.[10][11][12] During the first seven years of Rick Scott’s tenure, 3,000 applications were approved.[8]

Seven former felons filed a lawsuit against the state of Florida in the United States District Court for the Northern District of Florida in March 2017. The plaintiffs in the case, Hand v. Scott, alleged the process is unconstitutional due to its arbitrary nature.[13][14] In April 2018, U.S. District Judge Mark E. Walker ruled that Florida’s process for seeking restoration of voting rights in Florida was unconstitutional because it relied too much on personal appeal to Governor Scott.[15] The state appealed to the United States Court of Appeals for the Eleventh Circuit,[16] which stayed Walker’s ruling pending appeal.[17] An analysis conducted by The Palm Beach Post demonstrated that Scott discriminated against African Americans in re-enfranchisement hearings and favored Republicans.

It’s a shameful manipulation of the system and not just limited to Florida. And they’ll almost certainly get away with it.

FILED UNDER: Law and the Courts, Politics 101, U.S. Constitution
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Teve says:

    In statewide elections here in Florida Republicans usually win by a hundred thousand votes or less, and that only works because of disenfranchisement. Otherwise Florida would be reliably blue.

    And Florida is one of the worst states about trapping inmates in poverty, billing them for every day of their incarceration, charging them fees for being processed by law enforcement etcetera.

    fortunately I just saw yesterday there are some organizations starting specifically to raise money to pay off people’s old fines and fees and such.

    But Republicans are shitty people and this is not the only thing they’ll try, to stay in power illegitimately.

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  2. SenyorDave says:

    This is the face of the modern Republican party. If they could figure out a way to limit it to felons of color they would in a heartbeat. Who knows, if Trump can add an additional SC justice or two a racial test might just pass.

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  3. MarkedMan says:

    This reflexive instinct of the modern Republican to “Kiss Up Kick Down” May not be their worst characteristic but it is their most repulsive.

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  4. becca says:

    The GOP has been putting people in prison willy-nilly ever since we made prisons an attractive investment opportunity. The incarceration rate sky-rocketed. They even managed to snag a lot of potential democratic voters and take them out of the voting pool forever. Big bonus point!

    Superman would have a cow. Screw Truth, Justice, and the American Way, a permanent GOP majority is all they crave.

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  5. Daryl and his brother Darryl says:

    This is a fuqing travesty.
    Once again, Republicans know that they can’t sell what they are offering so they want to keep people from voting.
    The referendum make clear the wishes of the people. Now a bunch or Republicans think they know better. I’m willing to bet they are predominately old rich white guys. A bunch of them have white pillow cases with eye holes cut out of them.

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  6. Jax says:

    Republicans are using similar tactics in Utah regarding voter-approved Medicaid expansion.

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  7. Pete S says:

    @Daryl and his brother Darryl:

    The referendum make clear the wishes of the people. Now a bunch or Republicans think they know better.

    I mildly disagree. I don’t think they believe they know better, I think they genuinely and strongly don’t care what the wishes of the people are. And it is not just rich Republicans who feel this way. MarkedMan is right, somehow poor Republicans have been convinced that kick down is their best strategy.

    I will probably never give up my belief that nobody behaves in a more insulting manner to average Republican voters than Republican elites. But I will not speculate on why Republican voters don’t understand this as I am told it is unkind.

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  8. OzarkHillbilly says:

    Of course they are. Now I’ll go read your post.

  9. OzarkHillbilly says:

    It’s a shameful manipulation of the system and not just limited to Florida. And they’ll almost certainly get away with it.

    SSDD.

    ETA because we all know that race based discrimination is legal so long as you can call it something else and shoehorn it into a different rationale.

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  10. Kathy says:

    The whole structure of fines and fees strikes me as extremely unreasonable. Regardless of the voting rights implications, they should be sharply reduced or eliminated entirely.

    People get stuck on punishment for wrongdoing to the exception of almost everything else. So the punitive part is perfected, while rehabilitation, restitution, and deterrence are neglected. If air accident investigations were handled this way, we’d have lots of pilots, air traffic controllers, mechanics in prison, and also very unsafe planes.

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  11. Teve says:

    Oh look, a poll tax. How original.

    Republicans lately have come to view democracy the same way they regard their religion — it’s not heaven if everybody gets to go.

    -jim wright

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  12. An Interested Party says:

    An analysis conducted by The Palm Beach Post demonstrated that Scott discriminated against African Americans in re-enfranchisement hearings and favored Republicans.

    And some people wonder why the GOP is absolute poison to ethnic minorities…

    The whole structure of fines and fees strikes me as extremely unreasonable. Regardless of the voting rights implications, they should be sharply reduced or eliminated entirely.

    I wonder if this is a byproduct of not having a state income tax…Florida has to find some way to pay for its criminal “justice” system so rather than taxing the whole population they just try to take all the money they can from anyone unfortunate enough to get caught up in the criminal “justice” system…

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  13. Eric Florack says:

    Face it, if they thought for a minute that felons would vote Republican, you wouldn’t hear a peep out of this for the same reason that if people pouring over our southern border would vote republican, you’d be able to see the wall from space inside of a week’s time.

    If Democrats were actually winning elections would they be pursuing the inanity of eliminating the electoral College which in effect would put us under the boot of New York and Los Angeles?

    They’re now down to trying the FDR trick of packing the supreme Court.

    None of this would be happening, absolutely none of it, if Democrats were actually winning elections.

    As it is, the Democrats are trying desperately to get a good game of Calvinball going… And this effort in Florida is merely more of the same.

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  14. SKI says:

    @Eric Florack: GOP is “winning elections” – though repeatedly losing the actual popular vote – by systematically denying citizens the right to vote and working extremely hard to have some votes count more than others.

    There is a reason “taxation without representation” led to the Revolutionary War. If the GOP keeps going down this dead-end road of voter suppression, what do you think is waiting at the end?

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  15. SKI says:

    @Eric Florack: Your argument is literally that it is ok that the GOP are trying to keep citizens from voting because the Democrats only care because they think they would benefit.

    You have no moral argument or standing. No first principal other than power.

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  16. Guarneri says:

    If the proponents of the amendment wanted to avoid the fines and fees issue they could have explicitly made it part of the amendment. They didn’t because it probably would have prevented approval.

    Better – yes, voting is a right except upon felony conviction. I know its an completely outrageous view, but perhaps not committing a felony in the first place would be wise. It, you know, might have consequences.

    One has to chuckle at the acknowledgement that felons are disproportionately Democrat voters.

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  17. Daryl and his brother Darryl says:

    @Eric Florack:
    Doh…the neighborhood racist, and poster child for the Dunning-Kruger effect, is here to explain to us how Republicans over-turning the peoples vote is perfectly justified because……something about a comic strip that stopped publishing last century.
    Let’s play along, shall we?
    Calvinball is a game where the rules are made up as you go along.
    The people of Florida voted overwhelmingly for Amendment 4…to allow felons who have served their sentence, including probation and/or parole, to vote.
    Republicans in Florida are undoing the effect of Amendment 4, to date the biggest voting rights victory of the 21st century.
    You know…making up the rules as they go.
    Who is playing Calvinball, you dumb old racist fuq?

    Everyone, so you know who Florack is, please be sure to read:
    https://bitsblog.theconservativereader.com/2008/10/barack-obama-house-nigger/

  18. gVOR08 says:

    @Pete S:

    I think they genuinely and strongly don’t care what the wishes of the people are. And it is not just rich Republicans who feel this way. MarkedMan is right, somehow poor Republicans have been convinced that kick down is their best strategy.

    Corey Robin and many others make it clear that conservatism is not a matter of policy, it’s a matter of psychology. The psychology requires a hierarchy. And they’re perfectly OK with a tall stack of people above them, the important thing is that there’s someone below them. This is where the ‘republic, not a democracy’ thing comes from. The country should be, and is, being governed by the best people, people like me, and those people are and should be suppressed.

    You’re right, the Koch Bros, Trump, and the GOP establishment regard their base as suckers, the most easily manipulated voters they can find. And yes, there’s no point to telling them so. Old people on SS vote Republican. Try telling them GOPs want to destroy SS. Trump could put “I’ll kill Social Security and Medicare” on a neon sign in the middle of Fifth Avenue and they still wouldn’t believe it. Heck, they’d start chanting, “Kill it! Kill it!” sure he meant only for those people.

  19. An Interested Party says:

    Face it, if they thought for a minute that felons would vote Republican, you wouldn’t hear a peep out of this for the same reason that if people pouring over our southern border would vote republican, you’d be able to see the wall from space inside of a week’s time.

    Don’t put Republican tactics on Democrats…there is only one party that is actively trying to prevent whole groups of people from voting and that party isn’t the Democratic Party…

    They’re now down to trying the FDR trick of packing the supreme Court.

    A very prudent and appropriate response to the McConnell trick/lie…

    If Democrats were actually winning elections would they be pursuing the inanity of eliminating the electoral College which in effect would put us under the boot of New York and Los Angeles?

    The majority of voters picking a president…OMG! The horror! How unfair! How undemocratic!

    As it is, the Democrats are trying desperately to get a good game of Calvinball going… And this effort in Florida is merely more of the same.

    Hmm…Calvinball…voters overwhelmingly supported restoring voting rights to felons and that is nothing but a ploy by Democrats? Do you enjoy showcasing how stupid you are?

    One has to chuckle at the acknowledgement that felons are disproportionately Democrat voters.

    It’s no laughing matter that a disproportionate number of black people are tied up in the criminal justice system due to racism, lack of opportunities, and poverty…but of course you would find that funny…

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  20. Jax says:

    I disagree with the premise that “most felons vote for Democrats”. Every single convicted felon I know personally would vote Republican if they could vote. Granted, I am in Wyoming and the people here are predominantly white and Republican, so that doesn’t mean much.

    Wyoming recently restored voting rights to non-violent convicted felons, but only those convicted after 2016, and with a similar caveat that all probation/parole/fines and court fees be paid off first. Everybody else has to pay thousands of dollars to an attorney to petition the governor to have their rights restored, and Wyoming governors have been historically chintzy on the restoration of rights.

  21. Todd says:

    Overall, I’m not really a fan of these direct democracy tools such as ballot initiatives and state constitutional amendments. They are too often poorly worded and voters are usually inundated with “marketing” from both sides, inhibiting their ability to make truly informed decisions.

    But to these extent that these tools are now part of our system, this action in Florida as well as the recent rolling back of the voter approved medicaid expansion in Utah should highlight one truism:

    Even if a proposal passes convincingly (as the Florida voting restoration did), it will likely do no good if voters also reelect a GOP legislature.

  22. Kathy says:

    If Republicans can excuse their own rotten behavior because Democrats would do worse, well, perhaps Democrats ought to demonstrate how much worse they could do.

  23. An Interested Party says:

    Even if a proposal passes convincingly (as the Florida voting restoration did), it will likely do no good if voters also reelect a GOP legislature.

    It is sad and pathetic that the GOP doesn’t care about democracy, or even republicanism…

    If Republicans can excuse their own rotten behavior because Democrats would do worse, well, perhaps Democrats ought to demonstrate how much worse they could do.

    Indeed…like expanding the number of seats on the Supreme Court (and perhaps other courts) to the sadness of “moderates” in the media, politics, etc. and the rage of Republicans…the poor dears…

  24. Mikey says:

    @Eric Florack:

    If Democrats were actually winning elections would they be pursuing the inanity of eliminating the electoral College which in effect would put us under the boot of New York and Los Angeles?

    This tweet thread will illustrate how stupid and wrong your opinion is.

    Not that I expect you to be convinced–you are a die-hard, dead-ender cultist–but someone else may benefit.

    https://threadreaderapp.com/thread/1107979782401286147.html

  25. Scott Intner says:

    @Guarneri: Sad with the smug assurance of someone who (1) doesn’t begin to understand how unjust our justice system is and (2) has absolute confidence that they would never become entangled in it.

  26. Just nutha... says:

    @Teve: No, no, no! It’s only Trump that’s a shitty person. All the other Republicans are true Conservatives [TM] who love our country and its citizens. Former Governor Scott and the current governor and Republicans are absolutely not disenfranchising anyone. They are only protecting the integrity of the system.

  27. An Interested Party says:

    No, no, no! It’s only Trump that’s a shitty person. All the other Republicans are true Conservatives [TM] who love our country and its citizens.

    It would be nice if, some day, Republicans had to answer for supporting and standing by an idiotic and insidious charlatan, but of course that will probably never happen…